A little over a year ago, we wrote about the district court ruling saying that it’s unconstitutional for the President to block followers on social media. The case was pretty interesting, raising questions about what counts as a “designated public forum” online. As we noted at the time, plenty of people were likely to misinterpret this ruling to mean that social media sites themselves were “public forums” and therefore had to abide by the 1st Amendment — though one might hope that the Supreme Court’s pretty clear ruling suggesting that social media sites are not in any way public forums would put a rest to that argument (spoiler alert: it won’t).

Either way, the Trump administration appealed the lower court ruling and earlier this week, the 2nd Circuit affirmed the lower court ruling and agreed that it was a 1st Amendment violation for Trump to block followers. Once again, the legal specifics here are a bit in the weeds, and as Ken White noted in a tweet, it would have been nice if the ruling was more careful and more clear in dealing with the various complicated concepts at play. On that front, it failed. Overall, though, the ruling is the right decision — it just would have been nice if the judges had been more careful in explaining it.

The key point, though, is that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. The court is explicit that this ruling has nothing to do with whether or not private companies are bound by the 1st Amendment (because they are not):

We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms. We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees

The court makes it clear that President Trump’s Twitter account meets the various factors above. He’s a public official (duh) using Twitter (also duh). There is some discussion of how it’s used for official purposes:

The President and multiple members of his administration have described his use of the Account as official. The President has stipulated that he, with the assistance of Defendant Daniel Scavino, uses the Account frequently “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his Administration he believes to be unfair.” Id. at 56. In June 2017, then‐White House Press Secretary Sean Spicer stated at a press conference that President Trump’s tweets should be considered “official statements by the President of the United States.” Id. at 55‐56. In June 2017, the White House responded to a request for official White House records from the House Permanent Select Committee on Intelligence by referring the Committee to a statement made by the President on Twitter.

Moreover, the Account is one of the White House’s main vehicles for conducting official business. The President operates the Account with the assistance of defendant Daniel Scavino, the White House Director of Social Media and Assistant to the President. The President and his aides have characterized tweets from the Account as official statements of the President. For example, the President used the Account to announce the nomination of Christopher Wray as FBI director and to announce the administration’s ban on transgender individuals serving in the military. The President used the Account to first announce that he had fired Chief of Staff Reince Priebus and replaced him with General John Kelly. President Trump also used the Account to inform the public about his discussions with the South Korean president concerning North Korea’s nuclear program and about his decision to sell sophisticated military hardware to Japan and South Korea.

The court then notes that the President chose to block certain individuals because they were criticizing the President.

In May and June of 2017, the President blocked each of the Individual Plaintiffs (but not the Knight First Amendment Institute) from the Account. The government concedes that each of them was blocked after posting replies in which they criticized the President or his policies and that they were blocked as a result of their criticism.

In court, the DOJ tried to argue that while the Twitter account is part of Trump’s presidency, that the blocking was not a “state action.” The court does not buy this. At all.

No one disputes that the First Amendment restricts government regulation of private speech but does not regulate purely private speech. If, in blocking, the President were acting in a governmental capacity, then he may not discriminate based on viewpoint among the private speech occurring in the Account’s interactive space. As noted, the government argues first that the Account is the President’s private property because he opened it in 2009 as a personal account and he will retain personal control over the Account after his presidency. However, the fact that government control over property is temporary, or that the government does not “own” the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52 (1975) (holding privately‐owned theater leased to and operated by city was public forum). Temporary control by the government can still be control for First Amendment purposes.

The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” App’x at 54. The President has described his use of the Account as “MODERN DAY PRESIDENTIAL.” Id. at 55. The White House social media director has described the Account as a channel through which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” Id. The @WhiteHouse account, an undoubtedly official Twitter account run by the government, “directs Twitter users to ‘Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Id. Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President’s tweets from the Account “are official records that must be preserved under the Presidential Records Act.” Id. at 57.

Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” Id. at 54. The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. Id. at 56. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are overwhelming.

The government argues that since any Twitter user can block people, so should the President be able to do the same. But, again, the Court (correctly) notes that he President is different and held to a different standard (known as the Constitution) that regular people don’t have to follow.

The court notes that not every public official account is automatically covered this way. They need to actually use it for government business, among other things:

Of course, not every social media account operated by a public official is a government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry. The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, 1 regard and treat the account. But these are concerns for other cases and other days and are ones we are not required to consider or resolve on this appeal.

The next section is where the opinion gets a little… less-than-clear in its explanation, which might lead to people annoyingly presenting it as something it is not. First, the government tried to argue that the replies to Trump’s Twitter account are not a public forum. But the court notes that it’s well established that the First Amendment does apply online (note: this is not saying that private internet companies are bound by the 1st Amendment — but just that the government is unable to engage in viewpoint discrimination online).

If the Account is a forum—public or otherwise—viewpoint discrimination is not permitted. Int’l Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992); see also Pleasant Grove, 555 U.S. at 469‐70 (viewpoint discrimination prohibited in traditional, designated, and limited public forums); Cornelius, 473 U.S. at 806 (viewpoint discrimination prohibited in nonpublic forums). A blocked account is prevented from viewing any of the President’s tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech. Liking a tweet conveys approval or acknowledgment of a tweet and is therefore a symbolic message with expressive content. See, e.g., W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632‐33 (1943) (discussing symbols as speech). Significantly, the parties agree that all of this expressive conduct is communicated to the thousands of users who interact with the Account. By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment prohibits.

The court is also not impressed by the DOJ’s claim that blocking does not burden anyone’s speech.

That assertion is not well‐grounded in the facts presented to us. The government is correct that the Individual Plaintiffs have no right to require the President to listen to their speech. See Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984) (a plaintiff has “no constitutional right to force the government to listen to their views”). However, the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.

Again: here the ruling could have been clearer. Some will argue (incorrectly) that this shows that when people say that if you’re banned from one particular platform, even if you have many others, you’ve had your 1st Amendment rights taken away from you. But, again, the key factor here is whether or not it is state action doing the banning. That’s where it’s unconstitutional.

It’s a good overall ruling and the correct outcome. I just wish the judge had been a bit clearer in some of the statements. And, for those who will falsely use this ruling to argue that the case says that Twitter itself is a public forum and must abide by the 1st Amendment, law professor Eugene Volokh does a nice job explaining why you’re wrong:

Whether the First Amendment applies to a speech restriction generally depends on who is imposing the restriction. If the government is imposing the restriction, then the First Amendment does apply, whether or not the speech is on private property. Likewise, if a private entity is imposing the restriction, then the First Amendment doesn’t apply, whether or not the speech is on government property. (If, for instance, I hit you because of an offensive message that you’re wearing on a city sidewalk, I’m guilty of a crime and a tort, but not a First Amendment violation, unless I’m acting in my capacity as an agent for the government. If your private employer fires you because it learns of your having said something offensive on a city sidewalk, then in many states it wouldn’t be guilty of anything, and in any event not of a First Amendment violation.)

So, again, one can argue that @RealDonaldTrump is run by President Trump in his personal capacity, not his official capacity; but once the court rejected that view, then it doesn’t matter that @RealDonaldTrump is a forum set up on a private company’s computers. Though Twitter, as a private actor, isn’t bound by the First Amendment, a government official, acting in his official capacity, is bound by it.

Either way, kudos to the team at the Knight 1st Amendment Center who brought this case and have continued to pursue this key (and very interesting) aspect of 1st Amendment law.

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